AS TO THE ADMISSIBILITY OF
Application No. 23753/94
by Wolfgang BENZE
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 12 April 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 15 March 1994 by
Wolfgang BENZE against Germany and registered on 24 March 1994 under
file No. 23753/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a German citizen, born in 1938, and living in
Munich.
It follows from the applicant's statements and the documents
submitted that he married a Bolivian citizen in December 1975 and got
divorced on 22 March 1990. According to the divorce judgment of that
date, the right to care and custody over the divorced couple's two
children, Alexandra born on 29 January 1977 and Gisela born on
19 February 1981, was given to the mother. The judgment furthermore
regulated the applicant's right of access to his children. Originally
the applicant had the right to have his children visit him for certain
hours during two weekends per month.
Subsequently difficulties arose between the applicant on the one
hand and his ex-wife and the children on the other hand.
On 11 December 1992 the Family Court (Familiengericht) decided
to set aside the then existing visit regulation and to grant the
applicant the right to see his daughter Gisela every second Saturday
in the month from 10.00 am to 6.00 pm. The applicant's remaining
request for a more extensive right of access was rejected.
The applicant appealed and on 13 May 1993 the Munich Court of
Appeal (Oberlandesgericht) granted the applicant the right of access
to his daughter Gisela
- as from June 1993 onwards every second Saturday
in the month from 10.00 am to 6.00 pm and every
fourth Saturday in the month from 2.00 pm to
6.00 pm
- in addition, during the summer holidays, from
the first Sunday 11.00 am to 6.00 pm on the
following Sunday.
With regard to Alexandra the applicant was granted right of
access of two hours, one day per month.
In addition, the applicant was ordered not to disturb the
relationship between mother and children by inappropriate criticism
(unangebrachte Kritik). Furthermore he was ordered to abstain from
contacting his children in between the visiting hours except for
telephone calls each Wednesday between 6.00 and 8.00 pm.
The Court of Appeal stated that the right of access did not
include a right to educate the children, nor to supervise the other
parent. Rather it was destined to give to the holder the possibility
of observing continuously the development and the well-being of the
child and maintain a good relationship of love and affection.
In determining the extent of the right of access, the court did
not have to take into consideration the personal interests of the
respective parent but exclusively the well-being of the child. In this
context the intensity of the relationship of the child with the
respective parent had to be taken into account. Of importance was also
the relationship between the parents. Limitations of the right of
access could be necessary in cases of serious tensions between the
parents. Furthermore the wishes of the children themselves had to be
taken into account. If a child was opposed to seeing his/her father
or mother, it had to be examined whether this attitude was relevant or
understandable. If so it would be incompatible with the purpose of the
right of access and violate the child's personality right if access
were enforced against his/her will.
The court then found that the relationship between children and
father was only marginally able to stand up to stress (wenig belastbar)
and fragile (brüchig). Both children knew they owed much to their
father but rather disapproved of him (lehnen ihn ab ....). The court
further found that, contrary to the applicant's allegations, the mother
could not be made responsible for the children's attitude with regard
to their father. The court stated in this context that it had heard
both children separately and both had made conforming statements
according to which the only reason for their reluctance was the
father's difficult personality. Alexandra had in addition stated that
the mother had even encouraged her to visit the father.
The court also noted that the father had a tendency to sharp
criticism. He had, for example, stated at a hearing that the court
supported the "criminal practices" of the mother.
The court further found that the children were apparently
offended by the fact that the father could not control his hostile
attitude towards the mother in their presence. He had, for example,
stated at a hearing in the presence of Gisela that the mother was a
"criminal" and should be kept behind bars for six months.
The court also noted that the children had made reports of
corporal punishment which the father repeatedly inflicted upon them.
On the other hand the court admitted that the father was very
attached to his children and fully assumed his parental responsibility,
in particular he respected his maintenance obligations. The children
had a central position in his life. Nevertheless this was not
sufficient to grant an extensive right of access. Such an extensive
regulation required that both sides were attached to each other. When
however a parent was disapproved of by his child or his children, there
existed no relationship that had to be protected.
At a hearing before the family court of 15 July 1991 the child
Alexandra had emphatically refused further visits while the child
Gisela had opted for a restriction (Verkürzung) of the right of access.
Although the children had been heard on repeated occasions, their
standpoint had not changed.
The court admitted that the will of a child could not be taken
into account without examination. The guidelines of such examination
were to be found in the Federal Court's jurisprudence. The court then
noted that both children were mature for their age and capable of
judging the behaviour of their parents and their own relationship with
them. Therefore the court considered in agreement with an expert
opinion which had been obtained by the lower Family Court that it
should be left to the children to decide to what extent they wanted to
attach themselves to their parents. It would violate their right to
self-determination and their dignity to oblige them to have contacts
with one parent against their will. To do this could lead to
disturbances in their development. This was also confirmed by the
expert opinion.
The court considered that the children's negative attitude
vis-à-vis their father was understandable in view of his behaviour
towards them, in particular in view of his hostile position with regard
to the mother.
In all the circumstances the father's right of access had to be
limited in accordance with the wishes of the children.
On 12 July 1993 the Munich District Court (Amtsgericht-
Familiengericht) rejected the applicant's request to be granted the
right to care and custody over his children. The court referred to the
reasons stated in the decision of the Munich Court of Appeal given on
13 May 1993 and stated in addition that the children had unequivocally
declared that they wished to remain under the care and custody of their
mother. They had confirmed this wish when they were heard by a
representative of the social services of the city of Munich on
22 March 1993. There were no circumstances justifying withdrawing the
right of care and custody from the mother.
An appeal against this decision was rejected by the Munich Court
of Appeal on 28 November 1993. The court at the same time rejected the
applicant's request for an injunction (einstweilige Anordnung).
In so far as the applicant had alleged that the mother had turned
the children against him and retarded their mental, social and physical
development, the court found that these allegations were unproven. On
the other hand it followed from the statements of the mother of the
children and of the competent youth authorities that the children were
well taken care of and that there was no necessity for a change with
regard to the right of parental care.
The mother could not be held responsible for the solitary
attitude and the underweight state of the child Gisela. Gisela also
loved her father but his constant attacks on the mother exposed her to
a continuous conflict of loyalty. In this respect the responsibility
was with the father. In any event both children had told the court
that their food supply was good and abundant. Gisela's underweight
state could therefore not have been caused by insufficient food supply.
In addition the nutritional condition of the child Alexandra showed
that the children received sufficient food from their mother.
It also followed from a report submitted by the Youth Office on
22 March 1993 that the exercise by the mother of her right to care and
custody was unobjectionable.
It was true that there were no direct witnesses therefore the
children's own statements were of particular importance. There was no
reason to doubt their statements. Consequently there was also no
necessity to obtain the expert opinion of a psychologist in family
matters.
The applicant's constitutional appeals against the Appellate
Court's decisions of 13 May 1993 and of 28 November 1993 were rejected
by a panel of three judges of the Federal Constitutional Court
(Bundesverfassungsgericht) on 3 November 1993 and on 24 January 1994
respectively. While the latter decision only refers to Sections 93 (a)
and (b) of the Federal Constitutional Court Act, it is stated in the
decision of 3 November 1993 that there was nothing to show that the
Appellate Court had not carefully examined the matter in the course of
the proceedings such as to balance both the fundamental rights of the
parents and of the children and to come to a decision which would best
serve the children's well-being or that this decision was taken in
disregard of the European Convention of Human Rights.
COMPLAINTS
The applicant considers it to be immoral to allow one parent to
repudiate the other and to oblige the latter at the same time to pay
maintenance for the family. He submits that in the proceedings
relating to the right to care and custody and to the right of access
to his children he was denied a fair hearing while the criminal methods
of the mother were persistently disregarded by the courts. He alleges
that the expert opinions obtained in his matter were fabricated in
order to separate him from his children. He considers that the
decisions complained of violate his right to respect of family life as
guaranteed by Article 8 para. 1 of the Convention.
THE LAW
The applicant complains about the restrictions of his right of
access to his children as well as the refusal of the competent German
court to withdraw the right of care and custody over his two children
from the mother and to transfer this right to him.
The applicant invokes Article 8 (Art. 8) of the Convention:
"1. Everyone has the right to respect for his private and
family life, ...
2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society ... for the
protection of health or morals, or for the protection of the
rights and freedoms of others."
The Commission first recalls that the family life of the parents
with their children does not cease following the divorce of a married
couple (cf. No. 7770/77, Dec. 2.5.78, D.R. 14 p. 175). In the present
case the German courts' decisions to give the custody of the
applicant's daughters to his former wife and their later refusal to
transfer custody to the applicant as well as the limitations of the
applicant's right of access to his daughters interfered with his right
to family life under Article 8 para. 1 (Art. 8-1) of the Convention.
The Commission therefore has to examine whether these interferences
were justified under the terms of Article 8 para. 2 (Art. 8-2).
The Commission observes that the decisions complained of were
taken in accordance with German law.
The Commission notes the finding of the competent courts that the
interests of the applicant's daughters and their future well-being
required that their mother should continue to take care of them. The
German courts furthermore found that the children had expressed a
genuine and justified desire for the limitation of their father's right
of access. The courts had heard the children and mother personally and
also relied on expert opinion and the report submitted by the Youth
Office.
The Commission finds that the decisions of the German courts do
not contain any indication that the custody and right of access
decisions complained of were not based on due consideration of the
interests and the well-being of the children. The applicant has
criticized these decisions but has not shown that relevant evidence was
disregarded by the German courts to the detriment of his daughters or
his own rights.
Consequently, the interferences with the applicant's right to
family life were justified under Article 8 para. 2 (Art. 8-2) of the
Convention in that they can reasonably be considered as necessary for
the protection of the health and well-being of the applicant's
daughters.
It follows that the application is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy